IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

FILIZ SHINE EDIZER, : 

 : 

 Plaintiff, : Case No. 2:11-CV-799 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

MUSKINGUM UNIVERSITY, : Magistrate Judge Terence Kemp 

 : 

 Defendant. : 

: 

OPINION AND ORDER

I. INTRODUCTION 

 This matter is before the Court on a motion to dismiss for lack of subject matter 

jurisdiction1 by Defendant Muskingum University (“Defendant” or “Muskingum”), (Doc. 13), 

and a motion to dismiss Defendant’s counterclaims and to strike affirmative defenses by Plaintiff 

Filiz Shine Edizer (“Plaintiff” or “Edizer”), (Doc. 7). For the following reasons Defendant’s 

motion to dismiss for lack of subject matter jurisdiction is DENIED, and Plaintiff’s motion to 

dismiss counterclaims and to strike affirmative defenses is GRANTED in part and DENIED in 

part. 

II. BACKGROUND 

A. Factual History 

 Edizer was employed by Muskingum beginning in August 2003 as a tenure-track 

                                                            

1

 Defendant purports to move to dismiss Plaintiff’s complaint pursuant to both Federal Rule of Civil Procedure 

12(b)(1) & (6), but Defendant’s sole argument is that this Court does not have subject matter jurisdiction over 

Plaintiff’s complaint because she did not exhaust her administrative remedies. This Court will construe Defendant’s 

motion to dismiss as one to dismiss for lack of subject matter jurisdiction. 

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education professor. She alleges in her complaint that she was terminated based on her 

caregiving responsibilities to her son, who is disabled, her three other children, and her elderly 

mother, and that her termination amounts to unlawful sex discrimination under Title VII, 42 

U.S.C. § 2000e et seq., disability discrimination under the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq., and violations of Chapter 4112 of the Ohio Revised Code. 

 Prior to beginning employment at Muskingum, Edizer informed the Chair of the 

Education Department that she needed a class schedule of Mondays, Wednesdays, and Fridays to 

accommodate her caregiving responsibilities. According to Edizer, Muskingum agreed to this 

on-campus teaching schedule, and Edizer would not have accepted the position at Muskingum 

had it not. Edizer alleges that she received annual performance evaluations conducted by the 

Chair of the Education Department throughout her employment at Muskingum, and those 

evaluations were positive. 

 In 2008, Edizer began the process of requesting tenure and a promotion at Muskingum. 

Pursuant to Muskingum’s policies and procedures, she submitted her portfolio for review to the 

Vice President of Academic Affairs, who allegedly informed Edizer that the portfolio looked 

great. Both the current and former Chairs of the Education Department, as well as Edizer’s 

Division Coordinator, recommended granting Edizer’s application for tenure. 

 Under Muskingum’s policies, the Faculty Affairs Committee (“FAC”), comprised of 

eight tenured professors, is responsible for reviewing a candidate’s tenure application and 

qualifications and submitting a recommendation to the Vice President of Academic Affairs. 

Considering this recommendation, the Vice President of Academic Affairs is then to form his or 

her own recommendation, which he or she passes along to the President. The President forms 

his or her own recommendation, and passes it along to the Board of Trustees to make the final 

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decision regarding a candidate’s tenure application. 

 Edizer alleges that the FAC did not perform a thorough review of her candidacy. Two 

members of the FAC, Dr. Richard Williamson and Dr. Stephen Van Horn, were placed in charge 

of interviewing students about Edizer and reporting back to the FAC. According to Edizer, Van 

Horn failed to attend all of the student interviews, and Williamson failed to attend the FAC 

meeting where Edizer was interviewed. 

 The FAC knew of Edizer’s caregiving responsibilities and about her Mondays, 

Wednesdays, and Fridays teaching schedule. When considering Edizer’s application, the Chair 

of the FAC made the following note: “has M-W-F load – single mother. Has had health issues.” 

(Compl. ¶ 35.) 

 The FAC ultimately decided not to recommend Edizer for tenure and promotion, and in a 

report as to the reasons against recommending her for tenure, the FAC indicated its decision was 

based in part on her teaching schedule. The Vice President of Academic Affairs, President, and 

Board of Trustees concurred with the FAC’s opinion not to recommend Edizer for tenure. On 

April 22, 2009, Edizer received a letter from Muskingum that she would not receive tenure or a 

new contact for the 2010–11 school year. 

 Muskingum alleges different and additional facts in support of its counterclaims. First, 

Muskingum alleges that, although Department Chairs have the initial prerogative of scheduling a 

faculty member’s classroom schedule, only its President has the ability contractually to bind the 

university to a specific teaching schedule. Full-time faculty who are not scheduled to teach 

classes on certain days are required to use non-class days “for their mandated scholarly activity 

pursuits.” (Answer ¶ 73.) 

 Pursuant to Edizer’s employment contract, she was subject to “the privileges, 

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responsibilities and other relevant provisions of the Faculty Handbook.” (Id. ¶ 67) (emphasis in 

original). One such responsibility was for full-time faculty members to “give primary attention 

to their professional duties as understood by the University.” (Id. ¶ 69.) “Intent by a full-time 

faculty member to accept or continue any off-campus teaching or non-teaching employment 

during the term of service of the academic year . . . must be discussed in advance with and 

approved by the [Vice President of Academic Affairs] in writing.” (Id.) 

 According to Muskingum, Edizer communicated to Caroline Clark of the Ohio State 

University (“OSU”) that she was “considering [an OSU] position” and “for now [was] available 

Tuesday and Wednesday evenings.” (Id. ¶ 76.) Clark responded by suggesting that Edizer teach 

a “Teaching and Learning” course at the OSU College of Education School. (Id.) Edizer 

accepted the position on September 18, 2003, without discussion or approval from Muskingum, 

and continued teaching the course through the Spring of 2010. (Id. ¶¶ 77–80.) Edizer was 

compensated by OSU for teaching the course. Muskingum also alleges that during the 2004–05 

academic year, Edizer was appointed as a visiting professor at OSU and taught nine courses. 

 Muskingum alleges facts related to a grievance Edizer filed with its Professional 

Relations Committee (“PRC”) after she was denied tenure. Edizer argued in front of the PRC 

that Muskingum had discriminated against her on the basis of her sex and violated her rights 

under the ADA. The PRC conducted a three-day formal hearings where Edizer and her counsel 

had the opportunity to present exhibits, call witnesses, cross-examine Muskingum’s witnesses, 

and make closing arguments. The PRC ultimately concluded there was no evidence of sex or 

ADA discrimination. 

 Edizer filed a charge of discrimination with the EEOC thereafter, discussed further infra 

Part III.B.1. The EEOC issued a Notice of Right to Sue. 

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B. Procedural History 

 Edizer filed a complaint against Muskingum on September 2, 2011, alleging violations of 

Title VII, the ADA, and Chapter 4112 of the Ohio Revised Code. Muskingum filed an answer 

with affirmative defenses and counterclaims. Muskingum alleges a number of purported 

affirmative defenses, of which Edizer moves to strike the following: (1) disloyal/faithless servant 

doctrine (third defense); (2) breach of Edizer’s employment contract with Muskingum (fourth 

defense); (3) a bar from recovery of damages any time period beyond September 30, 2010, 

“which was the time when Muskingum discovered her unauthorized, during-term employment at 

another institution” (fifth defense); (4) “faithless/disloyal servant, unclean hands, fraud, and/or 

constructive fraud” (sixth defense); (5) estoppel (seventh defense); and (6) “[n]one of Plaintiff’s 

mother, daughter or son constitute [sic] individuals with disabilities” under the ADA (ninth 

defense). (Doc. 5, 7.) Muskingum also brings counterclaims for: (1) breach of duty of 

loyalty/faithless servant (count 1); (2) breach of contract (count 2); (3) “vexatious/frivolous 

litigation – federal” (count 3); and (4) “frivolous litigation – state” (count 4). (Doc. 5.) 

 After Edizer’s motion to dismiss counterclaims and to strike affirmative defenses was 

filed, (Doc. 7), Muskingum filed a motion to dismiss for lack of subject matter jurisdiction, (Doc. 

13). Both motions are now ripe for review. This Court will address Muskingum’s motion first 

because subject matter jurisdiction is a threshold matter. 

III. DEFENDANT’S MOTION FOR LACK OF SUBJECT MATTER JURISDICTION 

A. Standard of Review 

 The burden of proving jurisdiction is on the plaintiff when subject matter jurisdiction is 

challenged pursuant to Federal Rule Civil Procedure 12(b)(1). Moir v. Greater Cleveland Reg’l 

Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Indus., Inc., 798 F.2d 

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913, 915 (6th Cir. 1986)). Federal Rule Civil Procedure 12(b)(1) motions to dismiss based upon 

subject matter jurisdiction “generally come in two varieties: (1) a facial attack on subject matter 

jurisdiction; and (2) a factual attack on subject matter jurisdiction.” Moore v. Pielech, Case No. 

2:10-cv-00453, 2011 U.S. Dist. LEXIS 97098, at *4 (S.D. Ohio Aug. 30, 2011) (citing Ohio 

Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). 

 Facial attacks on subject matter jurisdiction “merely question the sufficiency of the 

pleading.” Ohio Nat’l Life, 922 F.2d at 325. A facial attack on subject matter jurisdiction is 

reviewed under the same standard as a 12(b)(6) motion to dismiss. Id. In a factual attack on 

subject matter jurisdiction a court “must . . . weigh the conflicting evidence to arrive at the 

factual predicate that subject matter jurisdiction exists or does not exist.” Id.

 Muskingum has made a factual attack on subject matter jurisdiction. This Court, 

therefore, may consider evidence outside of the pleading to resolve this factual dispute 

concerning jurisdiction. Rogers, 798 F.2d at 916. 

B. Law and Analysis 

 Muskingum argues that Edizer’s complaint must be dismissed for lack of subject matter 

jurisdiction because she has failed to exhaust her administrative remedies with respect to her 

Title VII and ADA association claims. Defendant argues that this Court should decline to 

exercise plenary jurisdiction over Edizer’s state law claims when it dismisses Edizer’s federal 

law claims. Edizer relies on Nichols v. Muskingum College to reply that this Court should reject 

Muskingum’s timeliness argument. 318 F.3d 674 (6th Cir. 2003). 

 A plaintiff must typically file a timely discrimination charge with the EEOC prior to 

bringing a Title VII lawsuit. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001); 

Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 407 (6th Cir. 1999), cert. 

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denied, 528 U.S. 1154 (2000). The applicable statute of limitations begins to run from the date 

of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). A charge is timely 

when the aggrieved filed with the EEOC within 180 days after the alleged unlawful practice 

occurred. Id. An exception exists for charges instituted with a state agency: 

[I]n a case of an unlawful employment practice with respect to which the person 

aggrieved has initially instituted proceedings with a State or local agency with 

authority to grant or seek relief from such practice or to institute criminal 

proceedings with respect thereto upon receiving notice thereof, such charge shall 

be filed by or on behalf of the person aggrieved within three hundred days after 

the alleged unlawful employment practice occurred, or within thirty days after 

receiving notice that the State or local agency has terminated the proceedings 

under the State or local law, whichever is earlier, and a copy of such charge shall 

be filed by the Commission with the State or local agency. 

Id. This exception applies in Ohio. 

 In Nichols, the plaintiff, like Edizer, was a professor at Muskingum who received 

notification that her contract would not be renewed for the academic year. 318 F.3d at 676. Two 

hundred and ninety-five days after the plaintiff received notice of her non-renewal, she went to 

the Ohio Civil Rights Commission (“OCRC”) and spoke with an intake officer. Id. She claimed 

that she was not re-hired because she failed to conform to the university’s accepted stereotype of 

female faculty. Id. The OCRC officer asked the plaintiff a number of questions about her 

complaint and assisted her in completing a charge. Id. The plaintiff handwrote the charge on 

OCRC stationary, signed it, and checked a box next to the signature line labeled “I also want this 

charge to be filed with the EEOC.” Id. The charge was forwarded to the EEOC, but not referred 

to the OCRC itself for state filing. Id.

 Muskingum argued that no charge was filed with the OCRC, the 300-day limitations 

period was inapplicable, and the plaintiff’s charge was therefore untimely. Id. The district court 

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ultimately agreed with Muskingum on a motion to reconsider, and the Sixth Circuit reversed. Id.

at 677, 687. 

 The Sixth Circuit framed the issue before it as follows: “whether [42 U.S.C. § 2000e5(e)(1)’s exception] provision is properly understood to provide that an individual who has 

presented her written and signed charge to the state agency has ‘initially instituted proceedings’ 

with that agency, regardless of whether the state agency takes further action on the claim,” and 

answered this question in the affirmative. Id. at 678. The Nichols court noted that it was 

presented with the bizarre situation where a state commission failed to refer a charge to itself for 

purposes of state filing. Id. Nevertheless, the Circuit found that it is “well settled law that if the 

EEOC fails to refer a charge to the state charging agency, the EEOC’s misfeasance is not held 

against the plaintiff.” Id. (internal string citations omitted). The Circuit cited persuasive 

reasoning from the Ninth Circuit in reaching its conclusion: 

Prohibiting any remedy to claimants who file discrimination complaints with an 

appropriate state or federal agency within the 300-day deadline is entirely at odds 

with the purpose of the worksharing agreement . . . and with Title VII. . . . In 

enacting Title VII, Congress . . . intended the statute’s procedural requirements to 

be liberally construed in order to remedy gender-based discrimination in the 

workplace and to preserve a claimant’s federal remedies in discrimination suits. 

Id. at 679 (quoting Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1177 (9th Cir.) 

(citations omitted)). 

 The Nichols court made two additional points that are of importance in this case. First, 

relying the Supreme Court’s decision in Love v. Pullman Co., the court explained that, “[t]he 

imposition of strict procedural technicalities ‘are particularly inappropriate in a statutory scheme 

in which laymen, unassisted by trained lawyers, initiate the process.’” Id. at 681 (citing 404 U.S. 

522, 525 n.4 (1972)). The Nichols court held that it was of no moment whether the plaintiff had 

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been represented by an attorney at the time she filed her charge with the OCRC. Id. at 681 n.2 

(citing Heiniger v. City of Phoenix, 625 F.2d 842, 845 (9th Cir. 1980)). Second, the court found 

that the district court had relied incorrectly on the fact that the plaintiff’s charge included the 

words “EEOC only” to conclude that the plaintiff did not file a proceeding with the state agency. 

Id. at 681. 

 Although the facts in this case vary slightly, this Court is persuaded that the reasoning in 

Nichols clearly applies. Edizer’s EEOC charge indicates that the “date the discrimination took 

place” was April 20, 2009. (Doc. 13-1.) She executed her charge in front of a notary on 

February 1, 2010, which is 287 days after the alleged wrongful conduct. (Id.) According to the 

EEOC’s Charge Transmittal form, the EEOC received Plaintiff’s charge on February 2, 2010, 

and sent the charge to the OCRC on February 5, 2010. February 5, 2010 is 291 days after the 

alleged wrongful conduct. The EEOC’s Charge Transmittal form is stamped that the “Ohio Civil 

Rights Commission Compliance Department” received it on February 16, 2010, which is 302 

days after the alleged wrongful conduct. (Id.) The OCRC’s Director of Enforcement and 

Compliance checked the box stating: “This will acknowledge receipt of the reference charge and 

indicate this Agency’s intention not to initially investigate the charge.” (Id.) Finally, the form 

was received back at the EEOC on February 18, 2010, without the “FEPA [Fair Employment 

Practice Agency]2

 waive” box checked. (Id.) 

 Muskingum makes a number of arguments—all extremely technical in nature—as to why 

Edizer’s charge was untimely. The Court finds these arguments unpersuasive. Muskingum’s 

main argument is that the OCRC did not receive Edizer’s charge until February 16, 2010, which 

                                                            

2

 The EEOC refers to state and local agencies that have their own laws prohibiting discrimination as FEPAs. 

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was 302 days after the alleged wrongful conduct. That is simply the date, however, that the 

“Ohio Civil Rights Commission Compliance Department” stamped that it received the charge. 

This Court would also have to believe, if it adopted Muskingum’s argument that it took 11 days 

for the charge to get from the EEOC to the OCRC. Even if it did take that long for the charge to 

get from one commission to the next, this Court will not construe this fact against the Plaintiff. 

Id. (explaining that it is “well settled law that if the EEOC fails to refer a charge to the state 

charging agency, the EEOC’s misfeasance is not held against the plaintiff”). Nor will it construe 

the fact that the “FEPA waive” box was unchecked when the EEOC received the charge back 

from the OCRC against the Plaintiff. The OCRC clearly acknowledged receipt of Edizer’s 

charge and indicated its intention not to investigate. Edizer filed a charge with the EEOC and 

that charge was sent to the OCRC before the 300 day deadline. As explained above, 

“[p]rohibiting any remedy to claimants who file discrimination complaints with an appropriate 

state or federal agency within the 300-day deadline is entirely at odds with the purpose of the 

worksharing agreement.” Nichols, 318 F.3d at 679. Furthermore, the Sixth Circuit has 

demonstrated a strong preference to allow suits by individuals complaining of discrimination 

who have diligently tried to satisfy the EEOC’s procedural requirement, even if they are not 

entirely successful. See, e.g., Mitchell v. Mid-Continent Spring Co., 466 F.2d 24, 27 (6th Cir. 

1972) (“It is clear that [plaintiff] should not lose her cause of action because of the failure of the 

EEOC to refer her complaint to the state agency.”). 

 Muskingum also focuses on the fact that Plaintiff’s charge was labeled “Equal 

Employment Opportunity Commission Only” and that Plaintiff was represented by her attorney 

when she filed her charge. The Nichols court, however, already found both of these facts 

unpersuasive reasons to conclude that a plaintiff’s charge was untimely filed. 318 F.3d at 681. 

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Citing Federal Rule Civil Procedure 11, Muskingum posits that Plaintiff’s allegation in her 

complaint that her EEOC charge was filed within 180 days of the unlawful practice is made 

without reasonable inquiry. (Compl. ¶ 5.) The Court suspects this was merely an error in 

draftsmanship because Plaintiff attaches her EEOC charge to her filings and never argues that 

her charged was filed within the 180 day-deadline. (Doc. 15.) Given that Defendant has made 

multiple pleading errors itself, detailed supra Part V, this Court will not construe this mistake in 

drafting against Plaintiff. 

 With respect to Plaintiff’s ADA association claim, Muskingum contends that even if this 

Court finds Edizer’s charge was timely filed with the OCRC, such filing does not extend 

Plaintiff’s time limit to file with the EEOC to 300 days because Ohio Revised Code § 4112.02, 

unlike the ADA, does not recognize a claim for associational discrimination. Therefore, 

Defendant contends, since Plaintiff did not file a valid charge under Ohio law, she is not entitled 

to benefit from the resulting extension of time to file with the EEOC. 

 Simply, Defendant either misunderstands or misstates the law regarding associational 

discrimination under Ohio Revised Code § 4112.02. While the Sixth Circuit has said in dicta 

that Ohio Revised Code § 4112.02 does not recognize a claim for associational discrimination, 

see Smith v. Hinkle Manufacturing Inc., 36 F. App’x 825, 831 (6th Cir. 2002), Ohio courts 

confronting the issue directly have held to the contrary. In Cole v. Seafare Enterprises Ltd., Inc., 

an Ohio court held that “a proscription against discrimination based on association must be 

applied to 4112.02(A).” No. C-950157, 1996 WL 60970, at *2 (Ohio Ct. App. Feb. 14, 1996). 

Since the dicta in Smith was not essential to the Court’s holding, and since the statute in question 

is an Ohio statute, this Court has followed the Ohio courts in finding “that Ohio law does permit 

a claim of associational discrimination.” Berry v. Frank’s Auto Body Carstar, Inc., 817 F.Supp. 

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2d 1037, 1047 (S.D. Ohio 2011) aff’d, No. 11–4150, 2012 WL 3553505 (6th Cir. Aug. 20, 2012) 

(citing Mawell v. City of Columbus, No. 2:08–cv–264, 2011 WL 2493525 (S.D. Ohio June 21, 

2011)). 

 A summary of the case law, demonstrates that Ohio does recognize a claim of 

associational discrimination under Ohio Revised Code § 4112.02. The charge Edizer filed with 

the state is valid, and she is able to benefit from the 300-day time limit to file her EEOC claim 

for ADA association discrimination with the EEOC. 

 Defendant’s motion to dismiss for lack of subject matter jurisdiction is DENIED. 

IV. PLAINTIFF’S MOTION TO DISMISS DEFENDANT’S COUNTERCLAIMS 

A. Standard of Review 

 Federal Rule Civil Procedure 12(b)(6) permits dismissal of a complaint for “failure to 

state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must 

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” 

Fed. R. Civ. P. 8(a). Although a non-moving party need not plead specific facts, the complaint 

must “give the defendant fair notice of what the claim is, and the grounds upon which it rests.” 

Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 

93 (2007)). 

 The non-moving part’s ground for relief must entail more than “labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). The non-moving party has satisfied Rule 12(b)(6) if he or 

she pled enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 663 (2009). Additionally, the Court must accept as true allegations of fact, and the 

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complaint must be construed in the light most favorable to the non-moving party. Davis H. 

Elliot Co. v. Caribbean Util. Co., 513 F.2d 1176, 1182 (6th Cir. 1975).3

B. Law and Analysis

1. Breach of Duty of Loyalty/Faithless Servant 

 Edizer argues Muskingum’s claim for breach of duty of loyalty/faithless servant should 

be dismissed because the university does not allege facts indicating dishonesty or disloyalty that 

permeated Edizer’s employment relationship with Muskingum or that damaged Muskingum. 

Edizer contends that “[i]t is not plausible that Dr. Edizer’s moonlighting at Ohio State 

constituted disloyalty ‘permeating’ her employment at Muskingum when her own Department 

Chair and her own Division Coordinator judged her to be worthy of tenure based on their 

knowledge of Dr. Edizer’s job performance at Muskingum.” (Doc. 7 at 6.) Muskingum argues 

that it has alleged sufficient to withstand Edizer’s motion to dismiss facts to state a claim for 

breach of duty of loyalty/faithless servant. 

 In Ohio, courts have adopted the “faithless servant doctrine” which provides the 

following: 

[D]ishonesty and disloyalty on the part of an employee which permeates his 

service to his employer will deprive him of his entire agreed compensation, due 

to the failure of such an employee to give the stipulated consideration for the 

agreed compensation. Further, as public policy mandates, an employee cannot be 

                                                            

3

 Defendant filed a motion for leave to file supplemental authority in support of its memorandum in opposition on 

July 9, 2012, asking this Court to consider Keys v. Humana, Inc., 684 F.3d 605 (6th Cir. 2012). In Keys, the Sixth 

Circuit held that the McDonnell Douglas burden-shifting framework required to plead a prima facie case of race 

discrimination does not apply at the pleading stage. Id. at 606 (citing 411 U.S. 792 (1973)). Muskingum does not 

bring any race discrimination counterclaims, making the reasoning and holding in Keys irrelevant in this case. 

Defendant’s motion for leave to file is DENIED.

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compensated for his own deceit or wrongdoing. However, an employee’s 

compensation will be denied only during his period of faithlessness. 

Foley v. Am. Elec. Power, 425 F. Supp. 2d 863, 863 (S.D. Ohio 2006) (emphasis in original) 

(citing Roberto v. Brown Cnty. General Hosp., 571 N.E.2d 467, 469 (Ohio Ct. App. 1989)). For 

example, the Roberto court held that under this doctrine, an employer was entitled to withhold 

deferred compensation where a hospital administrator had embezzled money from the hospital. 

571 N.E.2d at 469. 

 Muskingum has alleged Edizer was dishonest and disloyal because she breached the 

responsibilities she agreed to abide by in her employment contract. One such responsibility, 

outlined in the Faculty Handbook, was discussing any off-campus teaching employment with the 

Vice President of Academic Affairs at Muskingum prior to accepting any positions. Muskingum 

argues that Edizer, without its knowledge, taught at OSU from the fall of 2003 until the spring of 

2010. These allegations are sufficient to allege dishonesty and disloyalty on the part Edizer that 

permeated through her service to her employer, Muskingum. In fact, Muskingum has alleged 

that Edizer was violating the responsibilities under her employment contact nearly the entire time 

she was employed by the university. 

 Muskingum also alleges that, through her dishonesty and disloyalty, Edizer “deprived it 

of the full-time teaching services she had represented she would perform and for which 

Muskingum had bargained.” (Answer ¶ 87.) Muskingum has adequately alleged it was damaged 

by Edizer’s dishonesty and disloyalty. 

 Edizer’s reliance on Kamlani v. A.C. Leadbetter & Son, Inc., is unpersuasive. No. L-05-

1277, 2006 Ohio App. LEXIS 1951 (Ohio Ct. App. Apr. 28, 2006). The Kamlani case dealt with 

a faithless servant claim at the summary judgment stage, and the employer was supporting its 

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claim with only five emails, one of which was neither authored nor addressed to the plaintiff. Id.

at *14–15. Furthermore, this Court finds unconvincing her contention that it is not plausible that 

her employment at OSU constituted disloyalty permeating her employment at Muskingum 

because her Department Chairs recommended her for tenure. Muskingum has alleged it did not 

know about Edizer’s work at OSU. 

 Edizer’s motion to dismiss with respect to Muskingum’s first counterclaim is DENIED. 

2. Breach of Contract 

 Muskingum brings a breach of contract counterclaim against Edizer. She argues that she 

has substantially performed her obligations under her employment contract, and that because the 

responsibilities regarding off-campus teaching are not explicitly stated in her contract, but only 

incorporated by reference, such responsibilities were not actual conditions of her employment. 

Implied in her argument is that she did not breach her employment contract. Finally, she argues 

that, as a result of this mere reference to responsibilities, even if she did breach the contract, her 

breach was not material. 

 Muskingum counters that the requirement that faculty members comply with 

responsibilities listed in the Faculty Handbook is clearly expressed in Edizer’s employment 

contract. Muskingum also analyzes caselaw related to whether a breach is material, but it is 

unclear to this Court whether Muskingum’s final position is that the breach was material. The 

university nevertheless concludes by stating that at this point, in this litigation, there is 

insufficient evidence to determine if Edizer’s breach is material. 

 A breach of contract claim under Ohio law has four elements: (1) the existence of a 

contract; (2) the plaintiff’s performance; (3) the defendant’s breach; and (4) damages. Pavlovick 

v. Nat’l City Bank, 435 F.3d 560, 565 (6th Cir. 2006) (interpreting Ohio law). Edizer is only 

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challenges only the third element of Muskingum’s breach of contract claim. Muskingum has 

alleged that Edizer’s employment contract states that “the terms of employment include 

privileges, responsibilities, and other relevant provisions of the Faculty Handbook.” (Answer 

¶ 67.) The Faculty Handbook states that Edizer must obtain approval prior to teaching offcampus. Muskingum alleges Edizer taught off-campus at OSU, but without obtaining approval 

first. This Court finds Muskingum has sufficiently alleged Edizer breached her employment 

contract. 

 Substantial compliance is a doctrine a party uses in order to recover upon a contract it did 

not fully perform to the letter. See Interstate Gas Supply Inc. v. Calex Corp., No. 04AP-980, 

2006 Ohio App. LEXIS 575, at *23–24 (Ohio Ct. App. Feb. 14, 2006) (“The long and uniformly 

settled rule as to contracts requires only a substantial performance in order to recover upon such 

contract.”); Hansel v. Creative Concrete & Masonry Constr. Co., 772 N.E.2d 138, 141 (Ohio Ct. 

App. 2002) (“In general, substantial compliance will support a recovery of the contract price less 

allowance for defects in performance or damages for failure to strictly comply with the 

contract”). It is a doctrine that requires weighing of the evidence, which this Court does not do 

at the motion to dismiss stage. Similarly, whether a breach of a contract constitutes a material 

breach is a question of fact that would be improperly considered at the motion to dismiss stage. 

O’Brien v. Ohio State Univ., No. 06AP-946, 2007 WL 2729077, at *27 (Ohio Ct. App. 2007) 

(citations omitted) (“Ohio courts have held that the question whether a breach is material is 

primarily a question of fact”). This Court’s only task at this stage in the litigation is to 

determine whether Muskingum’s counterclaim for breach of contract contains sufficient 

allegation to withstand Edizer’s motion to dismiss. This Court finds that Muskingum’s 

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counterclaim has been adequately alleged, and Edizer’s motion to dismiss Muskingum’s breach 

of contract claim is DENIED. 

3. Vexatious/Frivolous Litigation—Federal 

 In its third counterclaim, Muskingum argues that Plaintiff’s Title VII/ADA action is “in 

an effort to harass and/or maliciously injure Muskingum, solely for the purpose of extorting 

money from it.” (Answer ¶ 111.) Edizer argues Muskingum has not pled sufficient facts to 

support its frivolous litigation claim under Twombly/Iqbal. Muskingum counters that it has done 

so in two major respects: (1) it has alleged “Plaintiff did not file a timely EEOC charge and she 

knows it”; and (2) Edizer’s lawsuit lacks foundation because the PRC found she had not 

evidence to support her claims. 

 42 U.S.C. § 2000e-5 states that “the court, in its discretion, may allow the prevailing 

party, . . . a reasonable attorney’s fee (including expert fees) as part of the costs.” “[T]he 

standard for awarding fees to a prevailing employer is more stringent than that for awarding fees 

to a prevailing employee.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 41718 (1978). 

An employer may be awarded fees only if the plaintiff’s claim is found to be “frivolous, 

unreasonable, or without foundation,” or where the plaintiff continued to litigate after it became 

clear that his claim was frivolous, unreasonable, or without foundation. Id. A court should 

consider the following factors when making its determination: (1) whether plaintiff presented 

evidence to establish a prima facie case; (2) whether defendant offered to settle the case; and 

(3) whether the matter proceeded to trial or was determined through motion practice. Balmer v. 

HCA, Inc., 423 F.3d 606, 616 (6th Cir. 2005), abrogated in part by Fox v. Vice, 131 S. Ct 2205, 

2212–13 (2011). 

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 It is too early in this litigation to determine whether Plaintiff’s lawsuit is frivolous in 

nature. As explained above, a court must evaluate a plaintiff’s evidence and conduct throughout 

the litigation to determine whether the litigation is frivolous. A court’s determination is made 

after the party bringing the frivolous litigation claims has prevailed. See 42 U.S.C. § 2000e-5. 

Thus, Edizer’s motion to dismiss counterclaim three is GRANTED, but Muskingum’s third 

counterclaim is DISMISSED without prejudice. 

4. Frivolous Litigation—State 

 Edizer urges this Court to dismiss Muskingum’s fourth counterclaim for the same reasons 

she urges the third should be dismissed. Under Ohio law, frivolous conduct is defined as 

follows: 

(i) It obviously serves merely to harass or maliciously injure another party to the 

civil action or appeal or is for another improper purpose, including, but not limited 

to, causing unnecessary delay or a needless increase in the cost of litigation. 

(ii) It is not warranted under existing law, cannot be supported by a good faith 

argument for an extension, modification, or reversal of existing law, or cannot be 

supported by a good faith argument for the establishment of new law. 

(iii) The conduct consists of allegations or other factual contentions that have no 

evidentiary support or, if specifically so identified, are not likely to have 

evidentiary support after a reasonable opportunity for further investigation or 

discovery. 

(iv) The conduct consists of denials or factual contentions that are not warranted 

by the evidence or, if specifically so identified, are not reasonably based on a lack 

of information or belief. 

Ohio Rev. Code § 2323.51. On a 12(b)(6) motion, this Court’s job is not to evaluate the 

evidence on the record. For the same reasons articulated supra Part IV.B.3, Edizer’s motion to 

dismiss counterclaim four is GRANTED and counterclaim four is DISMISSED without 

prejudice. 

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V. PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES 

 As explained supra, Edizer moves to dismiss the following “affirmative defenses” pled 

by Muskingum: (1) disloyal/faithless servant doctrine (third defense); (2) breach of Edizer’s 

employment contract with Muskingum (fourth defense); (3) a bar from recovery of damages any 

time period beyond September 30, 2010, “which was the time when Muskingum discovered her 

unauthorized, during-term employment at another institution” (fifth defense); 

(4) “faithless/disloyal servant, unclean hands, fraud, and/or constructive fraud” (sixth defense); 

(5) estoppel (seventh defense); and (6) “[n]one of Plaintiff’s mother, daughter or son constitute 

[sic] individuals with disabilities” under the ADA (ninth defense). (Doc. 7.) The parties 

disagree about whether the Iqbal/Twombly standard all applies to answers. 

 Federal Rule of Civil Procedure 8(c)(2) provides: 

If a party mistakenly designates a defense as a counterclaim, or a counterclaim as 

a defense, the court must, if justice requires, treat the pleading as though it were 

correctly designated, and may impose terms for doing so. 

Muskingum’s third, fourth, and sixth “affirmative defenses” are simply recitations of its 

counterclaims that this Court has already addressed. While Muskingum pleads its sixth defense 

using slightly different verbiage than in its third defense, both defenses are pleading 

Muskingum’s faithless servant counterclaim again. Pursuant to Federal Rule Civil Procedure 

8(c)(2), these affirmative defenses are STRICKEN because this Court will construe them as 

counterclaims. 

 Muskingum’s fifth “affirmative defense” appears to be an argument related to damages in 

this case, and is improperly pled as an affirmative defense in this case. Muskingum’s fifth 

affirmative defense is, therefore, STRICKEN. 

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 A court in this district has explained that while courts are divided as to whether Iqbal and 

Twombly apply to all pleadings, including defenses contained in answers, or only to complaint, it 

agreed with the reasoning of courts applying the Iqbal/Twombly pleading standard to defenses. 

Nixson v. Health Alliance, No. 1:10–CV–00338, 2010 WL 5230867, at *12 (S.D. Ohio Dec. 16, 

2010). “In both claims and defenses, the purpose of pleading requirements is to provide 

sufficient notice to the other side that some plausible, factual basis exists for the assertion,” and 

the Nixson court could “find no reason why claims must be plausible but defenses, if not held to 

the Iqbal/Twombly standard, could have a mere suggestion of possibility of applicability to the 

case.” Id. at *2. This Court agrees with this reasoning. 

 Muskingum’s seventh “affirmative defense” is pled as follows: “Plaintiff is estopped by 

her own conduct from pursuing her purported claims against Muskingum.” (Answer ¶ 63.) 

Thus, while estoppel is an affirmative defense under Federal Rule of Civil Procedure 8(c)(1), 

Muskingum provides no reasoning as to why Edizer should be estopped. Consequently, this 

defense must also be STRICKEN because Muskingum has presented no plausible factual basis 

for its claim. 

 Finally, Muskingum’s ninth “affirmative defense” states: “None of Plaintiff’s mother, 

daughter or son constitute [sic] individuals with disabilities” under the ADA. (Answer ¶ 65.) If 

Muskingum believes there is a dispute of material fact regarding whether any of Edizer’s family 

members are disabled, this issue would be properly raised at the summary judgment stage with 

evidence supporting Muskingum’s position. This ninth defense is STRICKEN because it is not 

properly pled. 

 

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VI. CONCLUSION 

 For the foregoing reasons, Defendant’s motion to dismiss for lack of subject matter 

jurisdiction is DENIED, and Plaintiff’s motion to dismiss counterclaims and to strike affirmative 

defenses is GRANTED in part and DENIED in part. Specifically, Plaintiff’s motion to dismiss 

is DENIED with respect to counterclaims one and two and GRANTED with respect to 

counterclaims three and four, which are DISMISSED without prejudice. Defendant’s 

affirmative defenses three, four, five, six, seven, and nine are STRICKEN. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: September 28, 2012 

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